Yang Amat Arif Tan Sri Arifin Zakaria, Ketua Hakim Negara;
Yang Amat Arif Tan Sri Dato’ Seri Md Raus Sharif, Presiden Mahkamah Rayuan;
Yang Amat Arif Tan Sri Dato’ Zulkefli Ahmad Makinudin, Hakim Besar Malaya;
Yang Amat Arif Tan Sri Datuk Seri Panglima Richard Malanjum, Hakim Besar Sabah dan Sarawak;
The Chief Justice of Brunei Darussalam;
The Chief Justice of Indonesia;
The Chief Justice of Singapore;
Peguam Negara Malaysia;
Ambassadors and High Commissioners;
Hakim–hakim dan Pesuruhjaya–Pesuruhjaya Kehakiman;
President of the Law Association for Asia and the Pacific (LAWASIA);
President of the Law Society of Hong Kong; dan
President of the Law Society of Singapore.
Yang Amat Arif, saya dengan rendah diri memohon izin meneruskan ucapan saya dalam Bahasa Inggeris.
My Lord,
I am honoured to speak not only for the Bar Council but also on behalf of the Advocates’ Association of Sarawak and the Sabah Law Association, who are represented here today by the presence of their respective Presidents, Khairil Azmi Mohd Hasbie and GBB Nandy @ Gaanesh, and by members of both bar associations.
To say that the past year was eventful would be an understatement. Change was the one constant theme in the last year, and no doubt change will continue at a greater pace in the year ahead.
On behalf of the Malaysian Bar, we again congratulate Tan Sri Arifin Zakaria, Tan Sri Dato’ Seri Md Raus Sharif and Tan Sri Dato’ Zulkefli Ahmad Makinudin on their respective appointments as Chief Justice of the Federal Court, President of the Court of Appeal and Chief Judge of Malaya, which took effect on 12 September 2011.
In the same breath, the Bar bids Tun Dato' Seri Zaki Tun Azmi a happy retirement. His plain–speaking frankness will be missed. Thankfully, his drive, energy and determination to continue to improve the engine of the Judiciary are shared in equal measure by the present Chief Justice.
There were a number of challenges and controversies last year. Most were successfully resolved, and while one or two remain open, I am cautiously optimistic that there is light at the end of the tunnel. This occasion today is neither the time nor place for me to dwell on the minutiae of such controversies. However, I ask you to bear with me if I seek to briefly draw on the lessons we must learn from them. More importantly, there is an abundance of positive developments that we can take from 2011 and build on in 2012.
The Immediate Past and Future of the Bar
During the past year, Bar Council continued to promote the cause of justice and actively express our views on many issues affecting the public interest, thus staying true to one central purpose of the Malaysian Bar, namely “to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour”. We also undertook various initiatives in order to “protect and assist the public in all matters touching ancillary or incidental to the law”, another function mandated to the Bar by the Legal Profession Act 1976.
On the legal aid front, we are proud to be one of the few law associations in the world that runs a widespread legal aid scheme, funded solely by a levy imposed on all Members. There are currently 15 Bar Council Legal Aid Centres (“LACs”) in Peninsular Malaysia, with at least one centre in each state, and a new centre is scheduled to open in Muar, Johore, later this year. Over 24,500 clients were assisted by LACs throughout the peninsula in 2011, representing an increase of 6.3% over the figure in 2010, and the number of volunteer lawyers continued to stand at over 1,400.
However, in order to be effective, any legal aid system must be sustainable, and far more comprehensive than the current Bar Council legal aid scheme has the means to be. In launching Yayasan Bantuan Guaman Kebangsaan (“YBGK”, or National Legal Aid Foundation) in February last year, the Prime Minister demonstrated recognition of the fundamental importance of access to justice. The inauguration was a historic event that heralds a significant new era in ensuring legal representation for all accused persons.
YBGK will assign duty solicitors to different police stations to meet arrested persons and advise them of their rights. For the first time, protocols have also been prepared for enforcement agencies to comply with, in regard to arrested persons.
In 2011, Bar Council conducted 14 training sessions for almost 500 lawyers nationwide, including three organised in collaboration with our sister bar associations in Sabah and Sarawak. We are now actively working to fix a date for the commencement of YBGK’s operations.
We ask the Judiciary to assist in ensuring that the system functions as intended. When an accused person is unrepresented during a remand proceeding, we urge the Bench to ascertain if the police had informed YBGK of the arrest. If the Judiciary plays this role, the implementation of the system will be strengthened, and the Constitutionally–guaranteed fundamental right to legal representation will be upheld.
One of the ways in which the Malaysian Bar signals its concern on particular issues is to hold a watching brief. Over the course of 2011, Bar Council held watching briefs in a range of cases involving issues such as conversion of children; gender discrimination; the constitutionality of requiring a police permit for a gathering; the constitutionality of a Universities and University Colleges Act 1971 provision; and deaths in custody, including the inquest into the tragic death of Teoh Beng Hock, as well as the proceedings of the subsequent Royal Commission of Enquiry.
Currently, a Bar Council observer team is attending the SUHAKAM public inquiry initiated to investigate allegations of violations of human rights relating to the BERSIH 2.0 public rally on 9 July 2011.
In terms of public awareness on public interest matters, the Bar Council Constitutional Law Committee, in particular, is continuing its numerous and dynamic efforts to reach out to as many civil society groups, organisations and members of the public as possible. Their countless outreach programmes include workshops, forums, talks and other public information events that have spanned no less than seven states.
In addition to these contributions to society at large, Bar Council is also focusing inward, with specific emphasis on increasing measures to enhance the standards of knowledge and skills of the Bar. To this end, we propose to implement a mandatory continuing professional development scheme for the benefit of our Members. The net effect of this will ultimately be enjoyed by their clients and hence the general public.
The Bar will soon be sailing into uncharted waters with the presence of foreign lawyers practising law in Malaysia. Liberalisation of the legal services market is a global trend and challenge that we must accept. I have been engaging various foreign lawyers who may be interested in having a presence in Malaysia. Bar Council’s expansion in professional development options is aimed to boost the capacity of Members to meet the competition head–on.
I take this opportunity to note that, between 2009 and 2011, the number of lawyers struck off the Roll of advocates and solicitors for misconduct has ranged between 23 and 27. This represents a mere 0.17 to 0.21% of the profession, given that practitioners numbered approximately 13,000 to 14,000 during this time period. The figures for suspended lawyers are also small – nine lawyers in 2010, and four in 2011. Even so, Bar Council takes matters relating to discipline of the legal profession seriously.
The Judiciary
I now turn to the Judiciary, and the Bar’s relationship with the Bench.
The working relationship between the Bar and the Bench has improved considerably under the tenure of Tun Dato' Seri Zaki Tun Azmi and now Tan Sri Arifin Zakaria. No other event better reflects the close relationship and understanding between the Bar and the Bench than the issuance of the Joint Press Release on 7 April 2011 by the then–Chief Justice Tun Dato' Seri Zaki Tun Azmi and the President of the Malaysian Bar. To recap, the important elements were that we must collaborate and coordinate with each other to ensure an effective and just administration of justice that inspires public confidence; that we were, and are, determined to substantially reduce the backlog of cases; and that there are no key performance indicators (“KPI”) based on quantitative measures. Instead, reassurance was given that judges are assessed on qualitative measures, such as integrity, impartiality and independence, quality of judgments, and observance of the Judges’ Code of Ethics 2009.
Malaysia’s successful reduction in the backlog of cases has been documented by the World Bank report (“Malaysia: Court Backlog and Delay Reduction Program – A Progress Report”), published in August 2011. It states that the Judiciary’s programme offers an interesting model for other countries wanting to pursue a similar reform, and notes that it was able to do so in a very short amount of time.
With the improvement in the efficiency and operation of the courts, the Bar is encouraged that the Chief Justice is shifting focus to quality. Towards that end, the Judiciary would undoubtedly agree with the Bar that all judges must have more than sufficient time to read court papers and written submissions, hear oral submissions, deliberate and decide on the facts and the law, and thereafter write the grounds of judgment; the grounds being a necessary document for the losing party to understand why the outcome was unfavourable. The Judiciary will undoubtedly continue to benefit from more appointments to the Bench from the Bar, especially for the adjudication of commercial disputes, where experience in private practice makes for swift and easy understanding of the issues and principles.
In order to attract the best talent to the Judiciary, whether at the Magistrates Court or the Federal Court, it is crucial that remuneration be commensurate with the burden of office. Reference must be made to levels of private sector remuneration as guidance. The extremely low salaries of the judicial officers at the bottom of the scale were highlighted by the World Bank report. This, together with the Public Service New Remuneration Scheme, makes for a compelling argument that the remuneration of judicial officers and judges must be revised upwards.
The close co–operation between the stakeholders in the administration of justice is exemplified in the collaborative work of the joint committee – comprising representatives of the Bar (through its Task Force), the Bench and the Attorney General’s Chambers – in drafting the Combined Rules of Court, a single set of civil procedure rules for the High Court and the Subordinate Courts. These rules are meant to streamline and harmonise the two different sets of rules into one, and to improve further the efficiency of the administration of justice.
Apart from the Combined Rules having an impact on litigation practice by mid–year, the coming into force of the Subordinate Courts (Amendment) Act 2010 in the near future, which increases the monetary jurisdiction of the Magistrates Court and the Sessions Court and confers upon the Sessions Court the power to grant injunctions and declarations, will also change the litigation landscape. In the Bar’s discussions with the Chief Justice, we have been assured that the Sessions Court judges will be given proper training to ensure they are equipped with the necessary knowledge and expertise to handle such matters. We have also been assured that only the more senior and experienced Sessions Court judges will be tasked to hear applications for injunctive relief. The Bar Council is presently looking into further safeguards and measures that can be proposed to the Chief Justice to ensure that the coming into effect of this Act will not cause hardship to litigants. One of these measures may include the appointment of practitioners as Sessions Court judges.
Another change requiring further measures for its smooth performance is the e–filing system. Again, the Bar Council, working with the judicial officers and the service provider, are looking into ways to improve the system in terms of increasing reliability and speed, and reducing waiting time. It is clear that e–filing, along with other steps to enlist technology in the pursuit of justice, represents the way forward in improving efficiency without compromising on interests of litigants.
The late Tun Mohamed Suffian Hashim, speaking in 1987 on the role of the Judiciary, described the elements necessary for the independence of, and public confidence in, the Judiciary, and what the Judiciary must stand for:
Malaysia is fortunate in having an educated, well–informed and intelligent public, a growing middle class, a vigilant press, and above all a strong and independent, responsible and public–spirited Bar quick to rush to the defence of the independence of the Judiciary.With these elements in our midst, I am confident that judges will long remain the Guardians of the Constitution and the Law, upholding the Rule of Law, and not the tools of politicians and Government; standing between the powerful and the weak, between the rich and the poor, between Tyranny and the people – dispensing justice impartially and fairly, without fear or favour.1
As “Guardians of the Constitution and the Law”, the Judiciary will face challenges ahead in having to hear a number of pending public law and constitutional cases, touching on issues such as gender discrimination, freedom of association of public university students, use of words relating to religion, freedom of assembly of minorities and those who call for free and fair elections, native customary rights, to name a few. The Bar will do its best to assist the Bench with submissions as watching brief counsel in some of these matters.
The Attorney General’s Chambers
The Bar has been working closely with the Attorney General’s Chambers (“AGC”) on three important pieces of legislation – amendments to the Legal Profession Act 1976, on liberalisation of the profession, that are at the final stage of completion; the proposed Construction Industry Payment and Adjudication Bill, which will introduce the speedy dispute resolution mechanism of adjudication into construction industry disputes; and amendments concerning criminal procedure, namely to the Evidence Act 1950 and Criminal Procedure Code. The Bar acknowledges the AGC’s assistance in conducting a seminar on mutual assistance in criminal matters, to enable our Criminal Law Committee members to understand this matter better during consultations on the amendments.
The consultations between the Bar and the AGC in these three areas were meaningful and effective, and we hope that such an exemplary approach to co–operation will continue for all future areas of law reform.
The Executive
The two main areas of co–operation between the Bar and the Executive were in respect of the promotion of Malaysia as a dispute resolution centre, and the hosting of the 5th China–ASEAN Forum on Legal Cooperation and Development (held on 26–27 September 2011), to which the Ministry of International Trade and Industry (“MITI”) and the Ministry of Tourism contributed, in financial as well as other aspects.
The improvements in the courts, together with the revitalised Kuala Lumpur Regional Centre for Arbitration under the dynamic leadership of Sundra Rajoo, have succeeded to the extent that the stakeholders are confident enough to embark on road shows to promote Malaysia as an option for dispute resolution (whether as the seat or venue of arbitration, or as the law governing the transaction). These road shows were conducted locally and abroad – when we were in China and South Korea – and the response has been positive. The Bar acknowledges the useful participation of MITI in the road show in China. This co–operation will continue for the coming year.
The Government has been equally responsive, by introducing amendments to the Arbitration Act 2005 at the Bar’s request, to provide for greater clarity in the law as well as finality in the arbitral process and enforceability of awards.
Events that were the exception to the theme of progress through meaningful and effective co–operation and consultation included the drafting of the Peaceful Assembly Bill, and its passage into legislation. Yet even this incident served to illustrate how far we have come. When the Bar felt that its views were not given sufficient consideration, it made its point as forcefully as it could. All parties then moved on, rather than perpetuating the disagreement.
And it is inevitable that there will be disagreements. Indeed, when strong–minded men and women who are passionate about the law and the cause of justice are thrown together, it would be worrying if there were no disagreements. It is this relationship of openness and frank discussion between lawyers (of whatever calling) that must be nurtured. Respectful intellectual discourse must prevail, instead of personal and inappropriate attacks, whether in Parliament or in court judgments.
The consequences of failing to do so have been summarised, allegedly by Benjamin Franklin: “We must, indeed, all hang together, or most assuredly we shall all hang separately.”
On a positive note, the Bar welcomes the change in mindset of the police force, towards facilitating freedom of assembly, and the announcement made by the Deputy Minister in the Prime Minister’s Department, Datuk Liew Vui Keong, that it is time Malaysia establishes an independent law reform commission responsible for reviewing, drafting and making laws and the related processes equitable, modern, fair and efficient. The proposed commission should be independent and ultimately accountable to Parliament, and comprise members who are judges, senior lawyers, academics with qualifications in law, or individuals who possess special qualifications, training or experience.
Public consultation in law–making is consistent with the Malaysia Day promise of our Prime Minister of a “functional and inclusive democracy”, and this is exemplified by the proposed amendments to the electoral process and the Universities and University Colleges Act 1971. As expressed in the press release we issued jointly with the Advocates’ Association of Sarawak and the Sabah Law Association on 16 September 2011, the substance of the promise “will be in the details, and the proof in the implementation”.
I wish to conclude with a pantun in Bahasa Malaysia that I hope conveys my message better:
Saling terantuk senduk dan belanga,Tatkala ibu menggulai serati,Kaum keluarga terkadang berselisih juga,Tidak sekali disimpan di dalam hati.Waktu senja pasang pelita,Jendela ditutup serta pintu,Bantu–membantu sesama kita,Agar usaha bertambah mutu.Beras segantang sudah disukat,Lalu disimpan di atas para,Andai kita saling muafakat,Negara damai rakyat sejahtera.
On behalf of Bar Council, the Advocates’ Association of Sarawak and the Sabah Law Association, we wish the Chief Justice and members of his Judiciary, and the Attorney General and his colleagues, a productive, progressive and healthy year ahead.
Lim Chee Wee
Chairman
Bar Council
14 January 2012
1 [1987] 2 MLJ xxiii.